TMI Blog1967 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on two grounds, namely, (i) that the rules in the Mysore Public Works Apartment Code (hereinafter referred to as the Code) were not followed, and (ii) that there was unequal treatment between the various tenderer,, which was in violation of Art. 14 of the Constitution. Most of the facts are not in dispute and we shall narrate them in some detail, as they are necessary for the purpose of determining whether there was any breach of Art. 14 of the Constitution. A notification was issued on April 4, 1966 for the contract on question calling for sealed tenders, the estimated cost of the contract being 230.44 lakhs. The estimated quantities of several items of work were stated in the tender documents and tenderers were required to quote their rates for various items of work and the amount for each item on the basis of the said estimated quantities. The notification also said that conditional tenders were liable to be rejected at the discretion of the competent authority without assigning any reason therefore. The notification further said that the competent authority reserved the power to reject all or any of the tenders without assigning any reason therefore. Nine sealed tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 3 was however different inasmuch as his was the lowest tender and he was merely asked whether he was prepared to withdraw the conditions he had attached to the tender. The appellant in his reply on August 16, 1966 contended that his tender was the lowest as the tender of respondent No. 3 was liable to be rejected on the ground that it was conditional and that there was no question therefore of asking him to reduce the amount tendered by him to ₹ 214.58 lakhs. Thereupon lie received a letter from the Chief Engineer requesting him again to give a categorical reply whether he was prepared to reduce the amount to ₹ 214.58 lakhs and that this reply should reach the Chief Engineer by August 31, 1966. Respondent No. 3 received the letter of the Chief Engineer on August 19, 1966 and he should have replied by August 26, 1966 but actually he sent the reply on August 31, 1966 informing the Chief Engineer that he had withdrawn his conditions and requesting that the work might be entrusted to him. The appellant's reply to the letter of August 25, 1966 was not received by August 31, 1966. It was received on September 10, 1966, and the appellant stated therein that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;chief Engineer was acting contrary to rules and illegally with regard to the appellant's tender and starting negotiations with the tenderers. On October 12, 1966, respondent No. 3 replied that it was extremely difficult for him to re-arrange the internal item rates or to. reduce overall rates by a certain percentage, as suggested in the circular letter, and pleaded that his tender coupled with the withdrawal of conditions might be accepted without modification. We now come to what happened on October 15, 19,06 for the main plank of the appellant in support of his case for contravention of Art. 14 is based thereon. The appellant's case is that after the tenders had been opened on October 15, 1966, the Chief Engineer carried on secret negotiations with respondent No. 3 whom he was favouring and accepted from him a letter secretly on that date by which respondent No. 3 quoted an overall reduction of 4 per cent below the estimated rates. The suggestion of the appellant is that this was done to bring down the reduction by respondent No. 3 to a little above 3.64 per cent below the estimated cost which. was what he had tendered from the very beginning and thus the Chief Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 3 on October 15 1966 or that he was favouring respondent No. 3 or that he had, not invited all the tenderers to make the reduction if they could. The grievance of the appellant was that he would have been equally prepared to reduce his tender by the paltry percentaee of 36 per cent and to take the contract at 4 per cent below the estimated 'cost if that was all that was required. But the contended that things were so manipulated in favour of respondent No. 3 that he was eventually granted the tender at only a little less than what the appellant had offered and much above what the respondent No. 3 had originally offered.so on November 14, 1966 the appellant filed the writ petition in the High Court based on the two points already indicated. The State repudiated both the contentions. The High Court dismissed the petition holding firstly that there was no breach of the conditions of tender contained in the Code, and secondly that there was no discrimination which attracted the application of Art. 14. The same two contentions have been urged on behalf of the appellant before us. The first is that the way in which tenders were dealt with from July 30, 1966 right up to Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms. We may, for example, refer to Art. 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions ,of service of persons appointed to services and posts under the Union or the State. We are therefore of opinion that Art. 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course, under such executive power, the State can give administrative instructions to its servants how to act in ;certain circumstances; but that will not make such instructions statutory rules which-are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefore. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed' out to us un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i.e. on August '31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the 'ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination. The other discrimination alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
